Social Research, Vol. 70, No. 5 (Fall 2003), pp. 659-680; Presented to Social Studies Conference on “ISLAM: Public and Private Sphere” at New School University, December 5, 2002, New York City

An Introduction to the Public and Private Debate in Islam

Abstract

Religion, in particular among the cultural components, is one of the most influential factors in determining the extent of public and private spheres. Religions descending from Abraham (i.e. Judaism, Christianity and Islam) give rise to the human identity, through emphasis on the private life of the individual. What is the extent of privacy in the Islamic point of view? Does private sphere change, or perhaps shrink, in a society that is in accord with shari’a (Islamic rules)? Although the bases for distinction between public and private spheres are visible through the Islamic ethics, jurisprudence and principles, the matter of public and private sphere has not been independently studied. Hence, for answering the sort of questions that are raised above, this paper takes on an introductory and groundbreaking discourse.

1. Private is that which one wishes to remain concealed—protected from, and inaccessible to others—or that over which one must exert decision-making authority. According to the first criterion, being informed of, and having oversight by others are eliminated, and through the second criterion, guardianship and paternity of others is removed. The public sphere is one in which matters are neither concealed nor inaccessible. This domain is the sphere of influence of the state.

2. According to the standards of shari’a (Islamic rules), the principle is not being public. Meaning that all matters are private domain, unless they are proven to be public. One cannot ask questions about the situation of other people, unless proof is supplied that such cases are in the public sphere. On the other hand, everyone is fully in charge of making decisions about him or herself, and others interfering in matters of his or her concern require reasoning and justification. Now we should ask: which cases in religious argument are exempt from requiring the individual’s permission, prior to search, investigation, and interference by others?

3. A faithful individual orients all dimensions of his life according to the principles of his faith. On this basis, there is no difference between his private and public spheres. God is ever present throughout the life of the faithful, and they freely choose God’s consent in their conduct. A faithful individual is not required to confess his sins to someone else, whereby proving what he has done may carry a worldly punishment—except if he has stepped over someone else’s right, by what he has done. It is enough that he repents; it is in the best interest of religion that he refrains from further publicizing his sin. The relationship between the individual and God is a direct relationship in Islam. None has the right to force piety, and to make others perform religious duties or obligations.

4. Koran clearly prohibits searching and investigating the private affairs of others (be them Moslem or non-Moslem). Additionally, disseminating or publicizing private matters is also prohibited. In shari’a, invading someone’s private sphere, searching and probing into it and disseminating such information are not only to commit sin, but also have worldly penalties. Therefore, the right of the individual in private sphere is bound to be more encompassing in the Islamic society.

5. The result of the two important principles of “sovereignty” and “lack of velayat” is the individual freedom in private life, within the framework of shari’a (Islamic rules). The individual, in his or her private space is free to do whatever—except harming someone else—even though it may be sin. But in the public sphere of the Islamic society, where Islamic rules influence the laws, restrictions in the way people cloth, eat and drink, conduct economic transactions and worship are imposed on the inhabitants. Hence, the private sphere in the Islamic culture is smaller than the norm in the contemporary world, and the Islamic public sphere is stretched further than that prevailing elsewhere in the world. Stepping over these boundaries is committing a sin—in the context of religion—and a crime punishable under the law. What is required to be adhered to in the public sphere is the form of the religion, otherwise, the essence of religion cannot be evaluated, except by the individual conscience and by God.

6. Based on the necessary rule of “ordering the good and forbidding the evil” (al-Amr-o bel-Ma’roofva-Nnah-yoanel-Monkar”), the citizens of an Islamic society are not allowed in the public sphere to visibly sin, or to pretend to commit sin. If one does, one could expect to be confronted with displays of dissatisfaction, unpleasant vocal notices and possibly a forceful reaction by other Moslems. “Ordering the good and forbidding the evil” is an important and powerful lever in the hand of Moslems for overseeing the government and confronting injustices. And it guarantees continuation of Islamic values and principles among the citizenry. At the same time, one cannot overlook the fact that by applying it imprecisely, this religious necessity could easily turn into a vehicle for inappropriately interfering with people’s private sphere. In other words, by abusing this principle, “ordering the good and forbidding the evil” could become a weapon in the hands of the inept and unsophisticated for eroding legitimate individual freedoms.

7. The inspection regime (al-Hisbah) is one of the Islamic government organs, whose duty is to popularize and expand “the good” and prevent “the evil” in the society. The inspection regime encompasses the entire public sphere. The inspector’s (al-Mohtasib) job is to inquire into matters of public sphere, and ensure that Islamic values and criteria prevail. The inspector can attempt cleansing the public sphere through: enforcing commanded actions; and certain recommended and permitted ones, wherein public interest; enforcing abandonment of prohibited activity and certain, repugnant and permitted, again, in the interest of the public; punishment (aTta’zeer) of the offenders and violators, by extracting cash penalties, detention and physical punishment (i.e. flogging). The unlimited authority of the inspector is a serious threat to private sphere, and by relying on it; one could strip the public sphere of all freedom for individual activity.

8. If a religious state additionally adopts a totalitarian or dictatorship approach, the private sphere will be subject to more impairment than in non-religious environments. In religious states, such as the caliphs among Sunnis and velayat-e faqih among Shiites, public interest is a sharp dagger that cuts through the private sphere with ease. Giving in to such urgencies, without limiting the authority of the Islamic ruler or government, is handing the government Carte blanch permission to spill into the private sphere. Without establishing unwavering legal limits—namely the absolute rights of all citizens—in such a manner that government could under no circumstances undermine, the society will not remain healthy for long.

9. Relying heavily and indelicately on “ordering the good and forbidding the evil”—the inspection regime, absolute powers of the religious ruler and upholding the interest of the state above Shari’a—a religious façade could be forced upon the society, but to the extent that improvements are forced, subscription to the essence of religion is weakened, and deceit, division and pretense to upholding the religion will disseminate. What value could a religious public sphere have, if it is consisted of private spheres that stand in contempt of it? The necessity for “ordering the good and forbidding the evil” must be viewed within the larger context of the religion of forgiveness and mercy. The intent of this principle is to prepare the ground for, and facilitate good deeds and prevent dissemination of evil. What is important is that religious conscience of the society is reconstructed—forcing the patient to comply with the act, without healing his religious conscience is not the right method of solving the problem. Ensuring that others act according to the religion requires establishing clear minimum bounds in the law to acknowledge the private life. The inspection regime can be sponsored by the public and within the construct of a civilian organization. The Islamic thought is not in harmony with absolute governance, and urging interests that are not contained within fixed religious limits. Reaching the point of equilibrium, about which private sphere can maintain its healthy functioning within the framework of the religious principles, side by side the public sphere, depends on a renewed effort (al-Ijtihad) and a fresh look at our heritage.

*Presented to Social Studies Conference on “ISLAM: Public and Private Sphere” at New School University, December 5, 2002, New York City

* * *

An Introduction to the Public and Private Debate in Islam

Mohsen Kadivar

The separation of what is “private” from what is “public” may in some sense be as old as human existence itself: however, the escalating emphasis on the private domain, and the central concern for protecting that which is private from prying intruders has in our times gained unprecedented intensity. For a long time governments have infringed upon the private space of their subjects, and in our time astonishing technological developments and mind-bugling electronic communication devices have come to the aid of governments in their threatening of private boundaries.

What demarcates the Public from the Private undoubtedly depends on a complex set of cultural, political and economic factors, and as a result of the interaction between such factors the line of demarcation inevitably would have to shift. From among the cultural factors, religion stands out as one of the most decisive components in delimiting the two spheres. Religions distinctly recognize and sanction a sphere of private action for individuals. Western religions —that is Abrahamic traditions—human identity and individuality is emphasized through the recognition and sanctioning of private life. The present paper aims to shed some light on the debate around notions of the Public and the Private in Islamic culture.

How does Islam, as one of the vibrant religions of the contemporary world, go about differentiating between the public and private? What is the extent of privacy in the Islamic point of view? What similarities and difference are there between the Islamic and Western perceptions of privacy? In general, what are the distinguishing characteristics of Moslems’ private lives? Does the extent of private sphere change, or perhaps shrink in a society that is run according to shari’a (the Islamic tradition)? What is the extent of government authority, including that of a religious government, regarding an individual’s right to privacy? What is the Islamic point of view on such concepts as the individual, family, society and government?

The present paper takes proposes an introductory, yet innovative, discourse for formulating a framework for a meaningful discussion of such questions as raised above. It simply goes so far as providing an introduction to an otherwise complex subject.

The basic distinction between that which is private and that which is not can be visibly discerned in the fields of Islamic ethics, law and jurisprudence. A systematic discussion of the private and public domains, however, as independently significant subjects of inquiry, remains undeveloped. Here, we shall first present a brief description of what we mean by the two concepts, and then proceed to establish the principal tenets of our reasoning. Based on two corollaries derived from our definition of privacy we present the Islamic point of view based on two axes, namely the forbiddance of unwarranted inquiry on the one hand and recognizing the right to freedom in action on the other. We then turn to issues of relevance to the private domain, namely the Islamic principle of Ordaining-Good and Forbidding-Evil (al-amr bi al-ma‘rūfwa al-nahy ‘an al-munkar), the legitimacy of governmental regulation (ḥisba) and the extent of the authority exerted by the Islamic state. In conclusion, we emphasize the need for a heightening and intensification of a sense of religious conscience on an individual basis.

1. The Meaning of Privacy and Private Matters

The two terms of “private” and “public” are not rooted in the heart of Islamic doctrine. The two terms occur neither in the Qur’ān nor in traditions conveyed from the Prophet and the Imāms. Islamic jurisprudence does not recognize these terms either. It is incumbent on us therefore, to explicate what we mean by these terms in the first place, and then to attempt to locate within the Islamic tradition what may be the closest references and rulings in regard to these concepts. “Private” and “Public” as intuitive and obvious as their meanings may appear are not amenable to straightforward definition. No unanimity obtains in regard to their meaning either. Three distinct, yet related meanings may be gleaned for what is “private” from available literature[1]: First, that which is personal or exclusive to the individual; Second, that which one would rather keep concealed and protected from others; Third, that over which the individual should exercise exclusive authority and control. Our use of the term “private” falls along those enunciated in the second and third criteria. The first criterion is not clear at all. When the two conditions are realized, namely when an issue had rather be kept hidden from and inaccessible to others, and when it falls exclusively within the decision-making authority of an individual, then that issue is “private.” Clearly, one could decide to share parts of this sphere with other people he or she trusts and at the same time keep most of it concealed and private. One’s private wishes, desires, hopes and desires, and most of one’s personal memories may fall into this sphere. The private sphere is the sole prerogative of the individual: others may not decide for or even dispense advice as regards matters in this sphere. The first criterion guarantees that information is withheld from other parties, and the second criterion rules out any claims to guardianship and authority from the others. Wealth and property, housing and occupation, religion and ideology, body and clothing, political subscriptions and social affiliations are all considered private matters according to these criteria. It may be for an issue to be covered by both criteria. In some cases, access to information constitutes the very private nature of an issue, while in others access to information is not the sole condition of privacy; it may be a question of who decides to disclose information. Do others have a right to decide or to alter the course of decision-making? Can we say some people have “no” right to privacy, say, prisoners, patients committed to hospitals mental wards, or underage children? How about people subjected to totalitarian regimes that strip them of any right to privacy: the more powerful the regime, the less right to privacy left for its subjects.

In contrast, in the public sphere, nothing is kept secret or rendered inaccessible from the citizens: the management, improvement and alteration of the public sphere, is the prerogative of the citizenry. The public domain is the sphere of influence for governmental authority[2]. This domain is jointly owned by all citizens[3], and as a transparent container, its contents are in everyone’s plain view (unless when they agree that matters pertaining defense and security should be placed under the supervision of their representatives, and not everyone).

One should not inquire into private matters: Prying into these matters should be forbidden. If someone happens to come across private information, further disclosure of that information is not permitted. Managing the affairs of the private domain is the exclusive right of the individual, who has the right to determine his or her own fate, and no one else has priority over an individual in his/her private domain.

Islamic jurisprudence, in accordance with the two criteria given here fully acknowledges the sanctity of the private domain: there is ample admonition against prying into the affairs of others; preventive measures can be found which guarantee the privacy of personal information on the one hand, and positively support individual rights to property and promote freedom in determining one’s course of life. There can be no doubt that Islamic law can fully accommodate the notion of private domain. The debate lies at delimiting the private domain from what is regarded as public, and we should take account of a number of Islamic rulings that appear to contradict the above-mentioned criteria of privacy.

2. Principles of the Private-Public Debate

Now that we have established the criteria to distinguish between private and public matters, it is necessary to further elaborate on the implications of the distinction. Doi9ng so would help us clarify any ambiguous that may arise in cases falling in the gray.

According to the standards of the sharī’a (Islamic law), the prima facie status of every issue is that of being not public. In other words, all matters are assumed to belong to the private domain, unless and until they are proven to belong to the public sphere. One may not ask questions about the affairs of other people, unless proof is supplied that such issues to be questioned belong in the public domain. Subjecting citizens to search or investigation goes against the prima facie principle[4]. Obtaining a search warrant requires legitimate proof and sufficient justification. On the other hand, every citizen is fully entitled to make decisions in regard to himself or herself, while others interfering in matters of his or her concern would be required to present just cause. This is the principle of “excluded wilāya (guardianship)[5]:” It implies that no one has the right to interfere in the affairs of an individual, without given specific divine permission to do so. This is postulated as basic and as such does not require reasoning or proof.

According to this analysis, matters relating to the individual are only that individual’s prerogative, and any investigation or interference in such matters is not allowed without the individual’s consent. Any inquiry into such matters should be based on legitimate reasoning in accordance with religious law. Similarly, no individual has the right to impose his or her will onto matters of interest to other individuals (i.e., the public domain): unless divine permission is given. Now we should examine the following: in what cases, by virtue of legal argument, can we proceed to investigate into and interfere with an individual’s affairs without his or her consent? Which matters are entrusted exclusively to the individual, irrespective of everybody else’s opinion? Deliberation in this regard shows that this debate rests on the grounds of human reason, and any deviation asserting priority over reason requires legitimate religious argument (and proof).

3. Requirement of Piety in Religious Private and Public Spheres:

A pious individual is devoted to God. He or she has freely chosen to align his or her life’s work with his or her religious devotion. Islam is the name of all religions descending from Abraham[6], and the essence of it is surrendering to the will of God. A faithful individual orients all dimensions of his life according to the principles of his faith. On this basis, there is no difference between his private and public spheres of thought and action. The life of the faithful is one of which two entities are aware, the individual and God: life is conducted according to divine command, and the believer has freely chosen to pursue God’s satisfaction alone. A non-believer thinks that no one witnesses his or her deeds. The faithful is aware of divine supervision which he or she heartily welcomes. The faithful is not forced into abiding by divine revelations. He may, on occasion, overlook this and that requirement and as such commit a sin. Committing a sin of course goes against the requirements of the faith, and subjects the sinner to punishment. The believer stands to be punished, if he or she does not repent. If he or she repents, however, he or she will be absolved. Not every sin is necessarily punished in the temporal world: punishment may be handed out on the Day of Judgment. A faithful individual is not required to confess the sins that he has committed to someone else, if proving what he has done carries a worldly punishment—except when another person’s rights have been compromised: it is enough for the sinner simply to repent before God. In other words, a sin against God committed in private, carries no obligation for the sinner to confess: it would be in the best interest of the religion for the sinner not to publicize his or her sin[7]. Islam regards the relationship between the individual and God direct relationship, and no intermediary, including the clergy, is required in an individual’s act of repentance. Nobody has the right to impose piety on the people, or to force individuals to perform religious duties and obligations. Should an individual fail to perform a religious requirement or should commit an act that prohibited by religion, for whatever reason, that is the individual’s choice and responsibility alone (i.e. the individual’s private sphere).

Islam also has rules for the public domain, which Moslems are required to observe. Therefore, in addition to managing the public domain in an Islamic society according to the consent of the Moslem constituency, satisfying God’s commandments are also required. This is assured by adhering to Islamic codes of conduct. The Qur’an speaks to the Moslems[8]. So long as Moslems freely elect to manage their society in harmony with the provisions of Islam, the management of their society will be Islamic, and whenever for whatever reason these provisions are transgressed, the society will no longer be an Islamic society, even though it may be viewed as a society of Moslems.

Has God appointed a specific body or institution to manage the public domain? Almost all Moslems concur that the Prophet was also a judge and arbiter of disputes and the ruler of the public domain. Following the prophet is the religious duty of all Moslems, as clearly stated in the Qur’an[9]. The verse “prophet is closer to the faithful than he is to himself (Qur’an 33:6)” holds, and encompasses all of the prophets edicts, even those relating to the private lives of Moslems[10]. Shiites, aside from the prophecy, hold the same authority as that of the prophet for the twelve Innocent Imams. But after the Innocent Imams[11], has a specific person or group of people been appointed to hold such authority? The collective answer of all Moslems to this question is negative, meaning that no one can claim that he or she is acting as the appointed steward of God on earth[12]. But in general neither of these two approaches in the two great sects of Islam is unanimously agreed upon.

4. Strict Injunction Against Search and Investigation

The first criterion of private life was that a person may choose to keep certain matters concealed from and inaccessible to others. This criterion implies the prohibition of search and investigation on one hand, and the prohibition of dissemination of personal information and matters of private sphere on the other. Both have been clearly stated in the Qur’an (49:12).

In his verse, God admonishes the faithful to refrain from suspicion and skepticism toward others, and then to refrain from prying into the personal affairs of others. The prohibition expressed in this verse has legal implications. Our discussion is concerned here with the subjecting to search and investigation whatever an individual has chosen to conceal. The Qur’an not only admonishes against prying into each other’s personal spheres, but also forbids any dissemination of such information (24:19).

Religious faith guarantees the sanctity of private life. The faithful have neither the right to pry into other peoples’ personal affairs, nor could they disseminate any such information that may have become known to them. The clear implication of these two religious injunctions is the full religious guarantee of the individuals’ sphere of privacy. Is this guarantee only applicable to Moslems, or does it include all members of the society, Moslem as well as non-Moslem? Although the prohibition quoted from Chapter 24 is about the faithful, the forbiddance of unwarranted investigation given in Chapter 49 is all-inclusive, and all citizens of an Islamic society, Moslem or non-Moslem should be guaranteed freedom in their private conduct. Although most of the quoted passages and the general debate around them has been about Moslems, no religious reason whatsoever has been put forward that would justify investigating into the private domain of non-Moslems, and one cannot assume the opposite of a ruling about Moslems to hold for non-Moslems.

The prophet has directed: “those, who acknowledge God in words, and not at heart, do not find fault with their fellow Moslems. The wrongdoing of those who do so become the subject of God’s scrutiny, and when God looks into someone’s wrongdoing then all shall be truly exposed[13].”

Imam Ja‘far Sadiq forbad exposing the faithful, and when he was asked if he meant this in a physical sense, he replied: “No, I mean revealing their secrets[14].” This prohibition against dissemination of private information does not apply only those of others; the individual is also forbidden from announcing his or her own wrongdoings. Imam Ali admonished a man who confessed to adultery and advised that he “should have kept his sin to himself[15].” Shari‘a is inclined to keep sins private and concealed from the public eye. The prophet noticed: “a ruler who seeks to expose the faults of its subjects is bound to drive them to falter[16].”

Entitlement to personal opinion is also a corollary of the injunction against revealing private information. Should an individual feel disinclined to state his or her opinion, others are not allowed to questioning him or her as to the contents of his or her thoughts. Furthermore, no one should be subjected to punishment for subscribing to an opinion—any opinion. An opinion may be considered right or wrong, correct or incorrect, but no opinion is subject to punishment. Punishment may apply to a deed—or more aptly to a misdeed—not to an opinion. Islam has not only disallowed questioning other peoples’ opinion, it has not prescribed any worldly punishment for subscribing to wrong opinions. I have in a separate paper argued for the full compatibility between freedom of opinion and religious belief in Islam[17], and have shown that contrary to the current practice no one can be punished in the name of Islam for converting away from his religion or for changing his mind. There is no justification in the holy Qur’an for the punishment of those who choose to leave Islam: despite widespread opinion about converting away from Islam holds otherwise.

One of the companions of the Prophet reported that ‘Umar b. Khattab, the second caliph, was roaming in the city one night when he heard shouting and cursing coming from a residence, he then peeked over the perimeter and started admonishing the man: You, the sinner, do you think that God will ignore your sins, as you’re sinning against him? The man replied: woe, commander of the faithful, do not rush to judgment; if I sinned once, you sinned three times. God has forbidden you to look into someone’s fault[18], and you have done otherwise. God has commanded you to enter peoples’ homes through the front door[19], and you have intruded over the fence. And you have approached me without salutation, and God has commanded you not to enter into other peoples’ homes without their permission, and without saying “greetings” (Salām) when you enter their premises[20]. ‘Umar reportedly asked for the man’s forgiveness, and went on only after he was granted forgiveness[21].

This incident in early Islamic history is on one hand indicative of the peoples’ freedom at the time, and on the other hand, clearly portrays the sanctity of the private sphere. Committing a sin in the private sphere is none of the government’s concern. If there is a consequence to sin (failure to repent), it also belongs to another domain—that between God and the sinner—not in this world, and it is not within the authority of the ruler. In summary, one can claim that the sphere of private life is recognized in Islam. Private information and the affairs of the individual are left to the individual’s recognizance, and no one, not even the government has the authority to inquire or investigate anyone’s private domain. Furthermore, in the case of having been privy to such information, no one has the right to disseminate someone else’s private information. Probing for personal opinion is prohibited. If someone has committed a sin in his or her private domain, there is no need to confessing to it before anyone, or to any authority, including a judge or the government; the preference is to repent and keep it unpublicized. In the shari’a (Islamic law), intruding into peoples private domain, searching and probing into it and disseminating such information is itself a sin, and in addition to worldly penalties, it is subject to divine punishment[22]. Therefore, the rights of the individual in their private sphere are guaranteed to a higher degree in an Islamic society than would be the case in a secular one.

5. Freedom of Action in Private Sphere

One of the principal attributes of the private domain is the right to free choice; the individual is free to make any arrangements in his or her private sphere, and no one else would be entitled to set priorities for him or her in that space. The prophet in a famous tradition clearly stated: “People have control over their property”[23]. No one can intrude on another individual’s property without the owner’s consent. Jurists have derived a jurisprudential principle from this tradition, known as “the principle of sovereignty,” which implies that whoever controls a piece of property is recognized as its rightful owner[24]. Another principle, in support of private life in the Islamic culture, is the “principle of lack of vilāya (guardianship)[25].” No one has the right to oversee and set priorities for others, unless having credible religious appointment by the divine. The result of these two principles is individual freedom in private life, within the framework of the shari’a (Islamic law). On this basis, selecting an occupation, spouse, name, form of living and clothing are the components of private life. Adhering to the Islamic criteria, people are completely free in the private domain.

The individual, in his or her private space—which we call home—is on his own, and away from the public eye. There, he or she would be free to do whatever, even though it may be a sin. There is only one condition to this freedom, which is that it cannot be harming anyone else—that is all. But as soon as the individual enters public domain, there are limitations that are imposed on him/her by the law, in any society. Individuals in public domain are limited in the way of clothing, sexual behavior and certain ways of social conduct that may vary from one culture to another. In an Islamic society—one in which the principal rulings of Islam underlie the penal code—specific limitations in public domain are imposed on the individuals, which could be compared to other cultures including those in the West. These limitations, which can be grouped into such categories as clothing, sexual relations, eating and drinking, economic and even religious relationships, show the private sphere in the Islamic culture to be smaller than the norm in the contemporary world, and accordingly show the Islamic public domain to be further stretched than that prevalent elsewhere in the world. In the context of religion, stepping over these boundaries is committing a sin, and in a society whose laws are based on shari‘a (the Islamic law), committing a sin in public domain is a crime, and subject to punishment. What is required to be observed in the public domain is the outer manifestations of religious conduct, be it in performing trade or in performing religious rituals. It is evident that the essence of religion cannot be evaluated, except by the individual conscience and by God. Therefore, even in public domain the intent and the essence of an act is not enforceable, and only the outer or visible layer of the acts must comply with legal requirements. Since religious edicts encompass all aspects of the human life, and the obligatory rulings separate a considerable number of actions into either necessary to do or necessary to abstain from, leaving the necessaries and committing the forbidden acts that would on the surface reflect negatively in public domain have been prohibited. “Commanding good and prohibiting evil” (al-amr bi al-Ma‘rūf wa al-nahy ‘an al-munkar) is one of the most important Islamic necessities, without which, one cannot sufficiently resolve the public-private debate in Islam. In other words, individual freedom in public domain becomes limited by this necessity; therefore, it is warranted to describe the scope of its effect and the sphere of its influence.

According to this indubitable Islamic principle, much emphasized in the Qur’an and throughout the Islamic tradition[26], all Moslems are required to speak out and act for what is right and against that which is wrong: it is a command covering every individual, party or government (rulers, sovereigns, etc.). There are certain conditions and protocols, among which is taking into account the likelihood of the act leading to an effective change in the behavior of the addressee. Moslems are obligated to object sincerely to the perpetration of any offense, be it a wrongdoing or failure to act rightly; they are then urged to voice their demands and concerns; and finally they are required to oppose the offender. The three phases of this protocol consist of expressing dismay, turning away and/or going as far as gesturing disagreement or dismay. The second step, which is a vocal objection, may certainly comprise interference in the private lives of the individuals, and if it were not for the religious permission, and even insistence, it would not be justified. These two steps are required of everyone, but it will suffice if only one person attends to it; so long as it is being addressed, the requirement is no longer binding on everyone. In other words, it is everyone’s religious duty, and even in absence of religious government it is to be carried out. The third phase, meaning physical opposition, which includes inflicting harm and possibly taking someone’s life, under the authority of Islamic government, is considered the religious prerogative of the government[27]—to which we will separately attend—and in the absence of a religious government, it is apparently everyone’s religious duty. However, the final phase, or the two final steps have usually not been permitted, unless specifically called for by a jurist, qualified to call for such actions.

Although, the prohibition against search and investigation of private sphere remains intact, all apparent obligations and prohibitions are subject to the principle of “commending good and prohibiting evil,” and citizens of an Islamic society are not allowed to visibly commit sins in the public sphere. If one does break the law, he or she could expect to be confronted with displays of dissatisfaction, unpleasant language or direct notice and possibly with physical intervention by other members of the Moslem community. The significance of this principle lies in the divine emphasis on complying with religious rules in the public sphere. This principle helps take control of public sphere away from the influence of irresponsible and undisciplined individuals. Matters left to private choice in the public sphere are indeed quite limited in the Islamic society. “Commending good and prohibiting evil” is also a decisive and powerful lever in the hand of Moslems for overseeing the government and confronting unjust rulers. So long as this principle is adhered to among the Moslems, corruption in government is held at bay, and in case it is overlooked, governments shall most certainly fall away from justice and fairness. On the other hand, this principle guarantees the continuous preservation of Islamic values among the members of society. A sense of responsibility among the faithful toward other members of the society, and resorting to proper approaches for deepening people’s commitments to the Islamic teachings are among the benefits of this divine principle. One should not overlook however that by failing to satisfy the conditions for its exact applicability this religious principle can easily turn into a means for inappropriately interfering with peoples’ private sphere. In other words, abusing the principle of “commending good and prohibiting evil” can become a weapon in the hands of the inept and unsophisticated for eroding the legitimate individual rights and freedoms. Despite all this, one cannot overlook that citizens of an Islamic society are bound to comply, at least in appearance, with Islamic teachings. In other words, shari‘a (the Islamic law) does not tolerate the individuals who do not respect the Islamic rules in the public sphere, and who insist on visible violations of the law. Even so, it protects their individual freedom in their private sphere, and prohibits others from investigating their personal affairs.

7. Inspection Authority (Da’ira Hisbah)

The inspection authority is among the institutions of the Islamic government, which actively enforces the principle of “commending good and forbidding evil” in society[28]. In more exact terms, a compliance inspector is appointed by the Islamic ruler to ensure that the public sphere is orderly, according to the Islamic standards, to prevent any violation of “rights” and perpetrations of “wrongdoing.” In the event that the interest of the society warrants, he can enforce acts and deeds that are recommended or permitted, and to circumvent certain repugnant deeds in the public sphere[29]. In effect, the inspection organ embodies the institutionalization of the principle of “commending good and prohibiting evil” by the Islamic regime in a concentrated and concerted effort, to take the place of volunteers acting in an unplanned and inconsistent fashion.

The inspection authority encompasses the entire public sphere, and the compliance inspector has very broad authorities—as broad as those of the Islamic ruler (comprising the entire realm of the shari‘a). Its jurisdiction includes transactions in the field of trade and commerce, and even extends to the realm of religious rituals. The compliance inspector recognizes not only the peoples’ rights toward one another and those between the people and the divine, and is required to assure the observance of religious duties in the public domain. The compliance inspector can remind Moslems of prayer and obligate them to righteousness, should they ever become lax or negligent. The inspector can stop a Moslem who is publicly breaking fast; can detain people who fail to maintain the Islamic standards of covering. Similarly, if a merchant in the marketplace is withholding goods from customers or propping up the prices, the inspector could intervene and enforce the fair treatment of the public. Should someone present the teachings of religion in a manner that was inconsistent with accepted norms, the inspector would be authorized to intervene and prevent the presentation or publication of such material[30]. The compliance inspector does not permit any repugnance to persist in the public sphere, and sees that every commandment is followed and fulfilled. The task of the compliance inspector is to assure compliance with religious values and standards at every corner of the public sphere.

The inspector and other executors of the compliance circuit, with permission from a jurist, are permitted in few cases to dole out swift and immediate punishment of offenders—this is called Ta‘zīr and is a subset of religious ta‘zīrs (ta‘zīrāt). In other words, the inspector can attempt to cleanse the public sphere, by resorting to the following levers: enforcing commanded actions, and certain recommended and permitted ones, forbidding prohibited activity, and again, should public interest so require, to inflict punishment (ta‘zīr) on offenders and violators. The punishment inflicted by the inspector can only be less severe than the maximum prescribed religious sentence (had), and includes such measures as the exaction of cash penalties, short-term detention and physical punishment (such as flogging)[31]. It is clear that the inspector does not have the right to enter or interfere with private sphere. The inspector is also not permitted to investigate, so long as the matter has nothing to do with public domain.

In cases where there is doubt as to whether the matter is private or infringes on the public sphere, the inspector’s discretion sets the standard. As an example, if someone has joined with friends in a home, and if in private sphere of the home they engage in inappropriate conduct, without having an effect in public domain, is this case in the order of private domain—and therefore investigating it is prohibited, and necessary to overlook the probable sins—or is it a matter of public sphere, and therefore preventing the wrongdoing necessary? Another example is: whether inside a private automobile is private sphere or not.

The inspection authority is no doubt one of powerful levers of the Islamic government for cleansing the society of religious impurities (pollutants). The Islamic ruler can shape the public sphere according to religious sentiments through his appointee (the compliance inspector [muḥtasib]). On this basis, irresponsible and unruly individuals are denied the possibility to deteriorate or diminish the quality of life in the public domain. On the other side, the unlimited authority of the compliance inspector is a serious threat to private sphere, and by giving it a free reign, one could strip the public sphere of all freedom for individual activity, even in cases of apparent private and personal conduct. In other words, the boundaries of the private sphere would most likely shrink to those of one’s private domicile: all individual matters visible to the public eye, even those of a completely personal and private nature would be considered as belonging to the public sphere. The individual would thus be stripped of any sense of authority and determination, and the religious ruler through the compliance inspector would make all decisions for the individual. The individual can be forced to perform against his or her will, only to face punishment in face of non-compliance. The muḥtasib (inspector) may even limit or take away the freedom of speech.

Should a ruler assume his prerogative to cease full control of the public sphere in the broadest sense, then how could one challenge the ruler’s authority? It is obvious that given an active compliance circuit, private sphere can easily shrink to negligible size and ultimately be confined the private space of one’s home. In the prevailing reading of Islam, both among the Sunnis and Shiites, the public sphere is too broad and subject to too much authoritative exercise of authority by the Islamic government: the recognized sphere of privacy beyond the perimeters of home is indeed quite negligible.

8. The Extent of Authority Ascribed to an Islamic Government

Government authority and the radius of the private sphere and individual liberties stand in an inverse relationship of proportionality. Where the government wields absolute power and it is not harnessed from violating the private sphere of citizens, private life and individual liberties remain rather insignificant. This problem is not unique to religious governments—it is generally a problem of all human societies. The private sphere is more threatened in totalitarian governments and dictatorships than in other societies, and the private sphere remains essentially meaningless in such societies[32]. Similarly, when a religious government adopts a totalitarian or dictatorial attitude, the private sphere sustains even more damage than in non-religious environments, since the totalitarian leaders are worldly gods literally creating hell for their citizens, but religious governments do all the same in the name of the divine paradise.

Citizens of a healthy society should attempt to strengthen the “civil society” and for restricting government power. Legal minimums should be provisioned for the private sphere, in a manner that cannot be threatened under any circumstances: this is a sign of a healthy society. Governments constantly aim to interfere with the private sphere of their citizens, under the pretext of national or public interest. Members of the opposition, especially those more vocal among them, are more prone to having their privacy violated. In Islamic societies governed by Islamic governments, for example in the case of caliphal rule among Sunnis Muslims or velāyat-e faqīh among the Shiites, public interest is very sharp dagger that easily cuts through the fabric of the private sphere.

Should the interest of the state (maslehat-e nezam) be deemed more sacrosanct than religious principles[33], an Islamic state would justify the temporarily suspension of the shari’a, with the expressed aim of preserving the interest of the state. Should prying into the personal affairs and private lives of individuals ever be necessary it will be permissible and even mandatory. Maslahat (Interest) is the catalyst that turns copper into gold[34]. Recognition of such interests for the state, without limitation or granting absolute authority to the Islamic state is tantamount to providing the state with a carte blanche to penetrate the very fabric of the private sphere. Limitations to state authority under exigent circumstances must be specified to the letter in the law, and t should be guaranteed that exigent measures can only be resorted to for brief periods only. Unscrupulous resort to exigent measures, particularly by Islamic rulers, poses the gravest danger to private life and legitimate individual freedoms.

In order to safeguard against unbridled corruption that necessarily stems from absolute authority, strict legal limitations must be imposed—namely absolute rights should be the prerogative of all citizens, and the sate cannot undermine this right under any circumstances. Religious limitations should be delineated such that cannot be violated or curtailed under any circumstance, at any time or place, and in the name of any institution. Determination of exigency (maslahat) must not be the prerogative of the state, or else religion would become a handmaiden of political power. Analysis and interpretation of religion cannot be left to the state, or else religion will be seriously threatened. Determination of interest (maslahat) should be conducted by an elective institution that is itself responsible to an appropriate legislative body, and functions under civil auspices. Last but not least, centralizing power in a fallible individual and relegating absolute powers to that individual is bound to beget corruption and will end up obliterating religious principles[35].

9. Elevating Religious Conscience

The principle of “commending good and prohibiting evil” does not suffice in and of itself without exact measures for its implementation. The institution of a Compliance Circuit, and relegating absolute powers to the Islamic state and putting the interest of the state above and beyond all religious principles may have all been devised with the best of intentions toward strengthening Islamic and implementing Islamic laws (shari’a). With such approaches, however, a religious façade could at best be forced upon society. Even if the believers or the Islamic state may thus succeed in uprooting what is prohibited and erecting what is commanded, the true essence of Islam will have been weakened among the public. Prevalent deceit, duplicity and maintaining appearances are only some of the pitfalls of imposed religiosity. What good is it to maintain an outwardly Islam-abiding public sphere while in their private spheres—homes—the citizens have nothing but contempt for it?

Responsibilities of the believers do not supercede those of the prophet’s. The prophet was tasked with bringing Islam to the people, not with forcing it upon them[36]. The principle of “commending good and prohibiting evil” is one of the requirements of Mohammedan shari’a, but it must be viewed within the larger context of Islam as the religion of compassion and mercy. The crux of the matter lies in the urgency of preparing the grounds for doing good deeds and forsaking evil. The people should be willingly shown the merits of this sublime system of values. The crux of the matter lies in reconstructing the public’s religious conscience. A weak conscience begets unwarranted deeds. Imposing seemingly right conduct without healing the religious conscience of the public fails to remedy the handicap. God has intended for his subjects to freely and voluntarily choose to do what is righteous[37]. Should He have meant to impose this upon his subjects, God would have done it Himself[38]. He has not even permitted his messenger to use force in ushering Islam[39]. The condition of likelihood of acceptance highlights this delicate point. Paying attention to others acting within religion is in need of establishing clear and minimum bounds in the law to acknowledge the private life. The overseeing institution need not be a state agency: it may rather be commissioned by the public and operate within the context of civil organization. It can thus be far more effective in preventing corruption and promoting moral rectitude. Islamic thought finds absolute and despotic rule alien and does not sanction interests not already delineated in Islamic terms. Islamic jurisprudence requires strict caution in such prevalent matters affecting peoples’ life, honor and right to property. By respecting these minimal rights and legislating with such fundamental principles in mind, would guarantee that the private domain in Islamic society would be protected from the whims of rulers and literalist adherents of religion. By taking account of such points the public and private spheres in Islamic society will maintain a balanced equilibrium. Such a balance is already well attested in the body of Islamic writings, although Moslems seem to have gradually overlooked them. Striking the point of equilibrium where the private sphere soundly functions within the framework of religious principles and in tandem with the public sphere, calls for a renewed effort to look afresh at our Islamic heritage. It is the sincere hope of this author that such a challenge will be met. Let it be that through a critical analysis of challenges posed by the notion of private sphere to current Islamic thinking we approach the desired balance between the public and private spheres in Islamic society. Explaining the detailed dynamics of such a desired situation shall be followed up at another opportunity.

Mohsen Kadivar is a specialist in Islamic studies and an Iranian dissident who has been in exile since 2008. He is research professor of Islamic studies at department of Religious Studies at Duke University
(Durham, North Carolina, US).